When a Loved One Dies in a Hospital or Nursing Home During the Pandemic: Records to Request and Questions to Ask

Published March 31, 2020 · For Grieving Families

If someone you love has died in a hospital or a nursing home in these past weeks, you may be carrying a kind of grief that is hard to describe. You may not have been able to sit at the bedside. You may have learned about a sudden decline by phone, from a nurse you had never met. And you may be left with questions that no one has had time to answer.

Many deaths during this public health emergency will be no one's fault. The illness is serious, and health care workers are working under enormous strain. But some families will later learn that a fall went unnoticed, a change in condition was missed, or a call to the doctor never happened. The only way to know which situation you are in is to get the records and ask careful questions. This article explains how to start, calmly and without having to decide anything about a lawsuit.

Why the records matter now

Medical and nursing home charts are the most complete account of what happened in your loved one's final days. They show vital signs, medication times, nursing notes, test results, physician orders, and when family members were called. Reviewing them is how a family, and later a doctor or nurse reviewer, can tell the difference between an illness that could not be stopped and care that fell short.

Requesting records early also helps you while memories are fresh. Write down what you were told and when: phone calls, the names of staff who called you, and anything that surprised you. Our guide to the first weeks after a sudden death has more on keeping these notes.

Who can request the records in Ohio

Ohio's medical records statute, R.C. 3701.74, gives a "patient's personal representative" the right to examine or obtain a copy of a medical record. After a death, that phrase includes the executor or administrator of the estate. If the estate is not going to be probated, it includes the person responsible for the estate. The statute covers hospitals, nursing homes and other long-term care facilities, and individual health care practitioners.

A few practical points:

• Put the request in writing and sign it. The statute requires a written, signed request, dated not more than one year before it is submitted.
• Be ready to show your authority. A provider may ask for proof that you are the personal representative, such as the probate court's appointment papers.
• The provider must respond within a reasonable time. If a provider fails to furnish the record, the statute allows the person who asked to bring a civil action to enforce the right of access.

What if no estate has been opened? Since March 2019, R.C. 2113.032 has let a person who is eligible to be appointed personal representative (or who is named as executor in a will) apply to the probate court in the county where the person who died lived for release of the medical and billing records, for use in evaluating a possible wrongful death or survivorship claim. The application can be filed before any estate is opened, and it must list the known surviving spouse, children, and next of kin. If a claim does go forward, an estate will still be needed. Our probate chapter on whether you need an estate explains why a personal representative is required even when there is little or no property.

What to ask for

When you write to a hospital or nursing home, ask for the complete record, not a summary. It helps to name the parts you want:

1. Admission records, the care plan, and any assessments done on arrival.
2. Physician orders and progress notes.
3. Nursing notes, flow sheets, and vital sign records for the entire stay.
4. Medication administration records.
5. Lab, imaging, and other test results.
6. Records of any transfer between a nursing home and a hospital, including ambulance records.
7. Records of calls to family members and to the physician.
8. The discharge summary or death summary.

If your loved one was moved between facilities, request records from each one. Gaps between a nursing home chart and a hospital chart are often where the most important questions appear.

Questions worth asking

You are entitled to ask questions, and most caregivers will try to answer them. Keep your tone calm and write down the answers. Questions families often find useful include:

• When was the first sign that my loved one's condition was changing, and what was done?
• When was the physician notified, and what did the physician order?
• Was my loved one tested, and when were results available?
• Were there any falls, injuries, or medication errors during the stay?
• How many staff members were caring for residents on the unit during the last days?
• Who was with my loved one at the end?

If the record does not match what you were told, that is a reason to talk with a lawyer, not to argue with the staff.

Be careful with forms

Read anything you are asked to sign. Do not sign a release or a waiver without understanding it, and you may politely decline a recorded statement until you have had advice.

Time limits still apply

Ohio's wrongful death statute, R.C. 2125.02, provides that a wrongful death action is brought by the personal representative for the benefit of the surviving spouse, children, parents and other next of kin. Under division (D)(1), it generally must be filed within two years after the death. Claims involving medical care can raise additional timing questions, so it is wise to get advice well before the deadline. Our chapter on deadlines walks through the basic rule.

On March 27, 2020, Ohio enacted House Bill 197 in response to the emergency. According to the Legislative Service Commission's analysis, it tolls (pauses) civil statutes of limitations that are set to expire between March 9, 2020 and July 30, 2020, until the emergency ends or July 30, 2020, whichever comes first. For most families facing a loss right now, the two-year period would not end during that window, so the ordinary deadline still matters. If you are unsure how this affects you, ask a lawyer.

When to talk to a lawyer

Requesting records and asking questions do not commit you to anything. Many families who call us simply want someone to help them understand a chart. If a review suggests that care fell below what it should have been, our pages on nursing home wrongful death and medical malpractice wrongful death explain what those cases involve.

Please take care of yourselves. Grief during this time can be isolating, and there is no single right way to carry it.